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Poster: Fact_Checker Date: Sep 29, 2009 6:59pm
Forum: feature_films Subject: Those watermarks - where video sources are defaced by them

Several messages over the past months (and into last year) have addressed the uploading of feature films and television programs where the copy which is to be the Internet Archive source has a watermark added to it.

Writing about "Lost, Lonely and Vicious", one post says that "The SWV version has their watermark, however." and (in a later post): "It has a watermark. A watermark means that the version of the movie on DVD is copyright. I tried to help steer you toward some very low-cost copies of the film on DVD."

http://www.archive.org/iathreads/post-view.php?id=257756

Elsewhere, there was a thread that began "As far as I can tell, there are no LIGHTS OUT episodes on the IA at present.

"I have a couple of episodes - only 1 or 2 - that don't have a watermark/screen bug in the corner from either a DVD company or the Sci-Fi Channel. I will not upload something with a watermark.

"If somebody can tell me for sure that LIGHTS OUT is PD and thus safe to upload ..."

In a later message, he wrote: "I watch out for watermarks and screen bugs in the corner of these shows, after what [an] informed forum poster said that those very watermarks make those specific recordings copyright, whether the original shows are still in copyright or not. I personally won't take a chance. That's why I mentioned that."

http://www.archive.org/iathreads/post-view.php?id=257576

The subject of trademarks and watermarks (not always the same thing) was covered over the course of several messages in this thread:

http://www.archive.org/iathreads/post-view.php?id=265215

This quite rightly leads to an appropriate question:

"What if you cover up the watermark with a different logo? How does the copyright work on public domain movies released on DVD? Are they no longer for public use once they are released? If you cover it up, can anybody tell?"

http://www.archive.org/iathreads/post-view.php?id=232468

As Video-Cellar right points out in message #265361 (in the thread that begins with message #265215): "Trademark infringement is not the same as copyright infringement."

There are two issues brought up when confronted with the choice of whether to copy or upload video from sources that have a watermark:

1) Has the placement of the watermark onto the pre-existing image altered the original to such an extent that the new version is entitled to be regarded as a derivative version eligible for copyright protection of its own?

2) Does the dissemination of a copy marked with the identity of a currently-operating company, without that company's authorization, amount to misrepresentation that the company sanctioned or authorized that particular copy or its distribution?

On the first point, Video-Cellar pointed out, "Another issue that is often raised is that the watermarked videos could be claimed as a new copyrightable derivative work. On Mill Creek DVDs the watermarks are added mechanically with very little creativity."

I concur. The U.S. Supreme Court famously ruled that exercising a lot of effort but a small amount of creativity, does not entitle the resulting work to copyright protection, in the Feist ("White Pages") decision. Read a summary of this decision at:

http://chart.copyrightdata.com/c16C.html#s046

The page that this summary is on writes up a number of cases which are grouped under the general idea of "originality is a prerequisite for copyright," including three other Supreme Court decisions. http://chart.copyrightdata.com/c16C.html

The main lesson of the White Pages decision is that there has to be some creative decisions made for a work to be entitled to copyright, not just an obvious arrangement with no true decisions, as is the case when phone number listings are alphabetized in a telephone directory, which is what led to the Supreme Court ruling in 1991 that the phone directories were not entitled to copyright.

When you consider the typical watermark, you won't find any creativity. The mark stays on the screen in the same place for long periods of time. Typically, the company decides to keep the watermark on screen for the full length of the movie, unless the company policy is to only cover the opening credits or everything but the opening credits. In any event, the time decisions are arbitrary.

Moving onto the second question: are watermarks grounds for the company whose watermark it is to keep others from using a copy with their watermark?

I say yes. However, let's return to question asked by MattWallner in message #232468:

"What if you cover up the watermark with a different logo? How does the copyright work on public domain movies released on DVD? Are they no longer for public use once they are released? If you cover it up, can anybody tell?" (http://www.archive.org/iathreads/post-view.php?id=232468)

I say that this should be fine. When you've covered up the watermark, there is no longer the identification of a particular company with the particular copy being offered for viewing or downloading. It might be asked: Aren't you still blocking the same pixels of the original image as were blocked by the watermark?, and: Isn't it a copyright violation if the version with the covered-up watermarks has blockage at the same point on the screen as the version with the watermark?

Here, you should consider that the placement of the watermark doesn't entail creativity. Pretty much every company that puts a watermark on the screen puts it in the same place: the lower right corner, ever so slightly higher than the bottom of the screen, and ever so to the left of the right-side edge. (TV broadcast networks, local stations, cable channels, VHS and DVD companies, and even YouTube have all gravitated to this placement.) There are not any unique decisions going on here.

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Poster: finnobrit Date: Sep 30, 2009 4:10am
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

Morally of course watermarks shouldn't count, they don't make any contribution to the work of art.

Restored versions being in copyright make sense because the restored version has required some work to improve its picture quality, but watermarks alone do not do this. Of course it's possible that some watermarks are there because of restoration work in which case there most definitely is an element of creativity which would justify the copyright.

If you're going to upload a watermarked video, even if you cover the watermark, make sure that it isn't a restored copy. Otherwise you may find that the restored version is still very much in copyright.

This post was modified by finnobrit on 2009-09-30 11:10:55

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Poster: k-otic Date: Sep 30, 2009 1:23pm
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

some say that the transfer of the original analog print to an digital media is already some sort of restoration ... so ...

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Oct 1, 2009 12:31am
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

Companies have always tried to get away with that claim. The reason why so many US companies get away with slapping the FBI warning on their videos/DVDs is that the penalties for "Copy Fraud" are miniscule (like about $2500).

In Australia, where it is technically illegal to identify a PD product as anything other than PD you sometimes get these confusingly conflicting notices. The first two are just conflicting. The last one is the only one that got it right. I have also seen ones that use a standard copyright warning format to inform about the PD status and the possible issues with quality... with the bold, red "WARNING" infront of it.

This post was modified by Video-Cellar on 2009-10-01 07:31:37

Attachment: PD_Copy_Notice_1_VDI.jpg
Attachment: PD_Copy_Notice_2_Virgin_Video.jpg
Attachment: PD_Copy_Notice_3_10_star.jpg

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Poster: Fact_Checker Date: Sep 30, 2009 4:30pm
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

"some say ..."? Who are the "some"?

Merely pointing a camera at a film print, or scanning it, doesn't result in a creative new work. The result is merely a file filled with computer typographic characters that appear arbitrary to a human being.

Anyone who believes that restoration is copyrightable should also carefully read the court decisions and the text of the law. Merely putting something back the way it was before (which is restoration in its literal meaning) does not result in a new work and is not creative. There is no reason under such circumstances for copyright to last beyond what the original copy did. Where you know of a "restored" work which is entitled to a new copyright, fid out if the "restored" work has something new, such as a new musical soundtrack, a new introduction, or changes in editing.

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Poster: Fact_Checker Date: Oct 1, 2009 2:16am
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

In reading my comment above, realize that "fid out if the 'restored' work has something new" should be: "find out if the 'restored' work has something new".

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Sep 30, 2009 10:41pm
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

There is very good argument that "restoration" on any level is not covered by copyright under US law. Where other countries have avenues for a "Sweat of the brow" basis for copyright claim, the US doesn't. The so called "creative" decisions made by film restorers are largely technical, especially in digital restoration, and are not strictly "creative" or transformative enough to warrant new copyright coverage.

Usually in countries where "sweat of the brow" is accepted as a copyright basis, the work is not given a new full term copyright. Rather, it is given a short term commensurate to a printed edition- often the minimum copyright term of 25 years.

You are right, only very transformative restorations (particularly silent films with new cards, scores, scenes that weren't in original releases) have valid claims to any kind of protection.

This post was modified by Video-Cellar on 2009-10-01 05:41:37

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Poster: yofitofu Date: Nov 28, 2009 12:48am
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

I found a new site springing up which offers some very old and very rare silent era cartoons which are mostly in the PD - www.cartoonsonfilm.com. What I find concerning, however, is the fine print section of the website

http://cartoonsonfilm.com/disclaimer.html

Here, the "collector" of these cartoons, Tom Stathe, seems to be saying that he has some "ownership" of the materials by virtue of having "restored" them, which seems to mean he has transferred them to DVD, maybe cleaned them up a bit, perhaps added music?

Do you think this is a legitimate claim of ownership in the works in question? He has not changed the films content to any degree I can see. And how to really determine this if the "owner" is probably unwilling to show off the originals?

I understand the desire to protect one's own business interests and thwart competition, but where is the line drawn on what is a"restoration" and what is not?

Of slightly more concern is the fact that, according to the Film Superlist 1894-1939, quite a few of the titles he is offering did have their copyrights renewed.

This aside, does anyone think this is a legitimate claim of ownership?

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Poster: Administrator, Curator, or StaffVideo-Cellar Date: Nov 28, 2009 1:19am
Forum: feature_films Subject: Re: Those watermarks - where video sources are defaced by them

Even if the restoration includes new tinting, title cards, score and any other new copyright worthy element the original underlying public domain footage is not the subject of the new copyright simply because it is included in the "restoration." Restoration (photochemical or digital) of film footage is not work protected by copyright, only "new" creative work can be copyright and restoration is not sufficiently creative. It is seen as being in the same class as making a photocopy. You are attempting to make a best quality facsimile of the original work not a new derivative work.

So, even if these DVDs contain new elements, there is nothing in copyright law that stops anyone from removing and using the original footage as long as they don't use any of the new copyrightable elements added by the restorer.

Nice how they "will not stop other video outlets from releasing alternate restorations made from verifiably different source elements" as if they would have any right to in the first place.

This post was modified by Video-Cellar on 2009-11-28 09:19:13

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